Sixth Circuit Lifts Temporary Stay of OSHA ETS Vax and Test Requirements; CMS Standard Heads to the Supreme Court
December 18, 2021
By: Thomas M. Cunningham
On Friday evening, December 17, 2021, a divided three judge panel of the United States Court of Appeals for the Sixth Circuit dissolved the temporary stay of the Emergency Temporary Standard (ETS) published on November 5 by the Occupational Safety and Health Administration (OSHA). The ETS requires employers with 100 or more employees to implement policies mandating that employees be vaccinated against COVID-19 or provide documentation of a negative COVID-19 test at least every seven days. A more detailed description of the ETS provisions is here.
The stay had been issued by the Fifth Circuit on November 6, in one of several lawsuits filed around the country challenging the legality of the ETS. The Fifth Circuit’s Order stated that the pending lawsuit “ give[s] cause to believe that there are grave statutory and constitutional issues” resulting from the mandate of the ETS. Thereafter, all lawsuits challenging the ETS were consolidated in the Sixth Circuit, which had allowed the stay to remain in place. OSHA publicly declared that it would halt enforcement efforts of the ETS pending further court rulings. OSHA filed a motion in the Sixth Circuit asking the Court to lift the stay shortly before the Thanksgiving Day holiday.
In granting that motion Friday night, the Sixth Circuit majority observed that “the ‘old normal’ is not going to return,” and held that the various legal challenges to the vaccination-and-testing requirements were likely to fail. The ruling provoked a dissenting opinion. The majority did not address or provide for any telescoping extension of time for employers to comply to account for the uncertainty created by the stay. Early Saturday morning, OSHA issued a statement stating that it will address the uncertainty caused by the stay by declining to issue citations for noncompliance with any requirements of the ETS until January 10, 2022, and will not issue citations for failure to comply with the ETS’s testing requirements before February 9, 2022, provided employers are making good faith efforts to comply.
As this article was being written, several challengers of the OSHA ETS mandates filed emergency applications to the U.S. Supreme Court, requesting the stay be reinstated. The previous evening, Thursday, December 16, the Administration filed an application in the Supreme Court seeking to have the Missouri and Louisiana federal district court preliminary injunctions of the CMS vaccination mandate stayed or lifted in the 24 states (including Iowa) in which they apply. Friday night, December 17 (the same day as the Sixth Circuit ruling in the ETS case) the Supreme Court ordered the challengers in the Missouri and Louisiana CMS cases to respond to the government’s application no later than December 30 at 4:00 p.m. Given that order, it is quite possible that the Court will order OSHA to respond to the challengers in the ETS case by the same deadline.
These developments render the immediate future for employers uncertain. As we have stated elsewhere, portions of these mandates, if they go into effect, will conflict with Iowa law (see here and here). OSHA has now announced its expected compliance deadlines and the date it will begin enforcement activities of the ETS unless the mandate is stayed or enjoined. Given that, employers may want to continue preparing for the ETS while litigation continues.
Nyemaster Goode’s Labor & Employment Department is ready to assist employers in navigating the dynamic legal intricacies and meeting the conflicting obligations facing them. We will continue to monitor and report on legal developments with respect to the COVID-19 situation and will post updates on our web site under the “News & Insights” tab.